The Fourth Circuit Sends A Case Back; or Why You Can’t Trust A Probable Cause Affidavit

Paresh Patel is probably the smartest lawyer I know when it comes to criminal history calculations in the Fourth Circuit. So I was particularly tickled to see his win in United States v. Donnell.

How a person’s criminal history is calculated when a federal judge decides what sentence the person should get is, of course, incredibly important to what the sentence will be. (See this post, or this one, or this one.)

If a person’s prior convictions are for crimes of violence, that’s particularly true. In many cases with crimes of violence, the guidelines look twice to a person’s criminal history – once when the criminal history score is calculated and once when the offense level is determined.

For career offenders under U.S.S.G. § 4A2.1, having two prior convictions for a crime of violence can dramatically increase the sentencing guidelines. The illegal reentry guidelines also go up if a person has a prior conviction for a violent crime, under § 2L1.2.

And, for people who are caught with a gun after a felony conviction, criminal history can have a dramatic effect on their sentence. If a person is convicted of being a felon in possession of a firearm, normally the statutory maximum is ten years – that’s the most the court can give. If the person has three convictions for a crime of violence, the statutory mandatory minimum is 15 years, and the statutory maximum is life.

Even if a person convicted of being a felon in possession of a firearm doesn’t have three convictions for a crime of violence, his guidelines are still affected by whether the prior offenses are violent crimes under U.S.S.G. § 2K2.1.

Section 2K2.1 was at issue in Donnell. Mr. Donnell pled guilty to being a felon in possession of a firearm. He had a prior conviction for second degree assault in Maryland. He also had another conviction for a crime of violence.

Under 2K2.1, if he has two convictions for a crime of violence, his offense level starts at a 24. If it’s only one, then it starts at a 20.

The question was whether a Maryland second degree assault charge counts as a crime of violence. The Fourth Circuit has already said that it doesn’t always – as the court of appeals said in Donnell:

second degree assault under Maryland law “encompasses several distinct crimes,
some of which qualify as violent felonies and others of which do not”

When a prior conviction might be violent or might not be, the sentencing court has to look at the records of the case to see what happened.

A court can look at a charging document to see if the prior charge was a crime of violence (the court can also look at other documents too – like a transcript of a plea proceeding). In Donnell, the charging document itself didn’t say much, just that Mr. Donnell was charged with second degree assault and a judge’s checkmark saying that there was probable cause to think he committed the assault.

There was, however, a separate document – a statement of probable cause – that described facts that would have made Mr. Donnell’s conviction a crime of violence. That statement of probable cause, though, was not a part of the document that stated the charges.

The district court thought it was good enough. The court of appeals disagreed.

As the Fourth Circuit said,

The certainty that the defendant necessarily admitted the facts contained in the external document, as distinguished from the charging document itself, the transcript of the plea colloquy, or the written plea agreement, is absent.

And, as a result, the case was reversed and remanded for a new sentencing.

Perhaps my favorite note to end on, is the opinion’s last footnote:

Although we express no view as to what sentence the district court might properly impose upon remand, we find wholly unpersuasive, particularly in light of the district court’s careful analysis of the § 3553(a) factors, the Government’s fall-back argument that we should affirm the judgment on the theory that the district court would have imposed the same sentence without the enhancement that we find was improperly applied.

Seriously, a four-level difference in the guidelines wouldn’t have mattered to the district court? That’s a muscular view of Booker for a federal prosecutor to take.